These rights are based upon private and public sector collective bargaining laws.
An employee's right to representation in investigatory or pre-disciplinary
meetings was established in a 1975 United States Supreme Court decision, NLRB v.
Weingarten, Inc. The state Labor Relations Commission has adopted the Weingarten
rules for public employees covered by M. G. L. c. 150E.

What situations give rise to Weingarten rights?

Where the employee has a reasonable expectation that discipline may result;
for example, where the meeting is part of the employer's disciplinary procedure.

Where the purpose of the meeting or interview is to investigate an employees
allegedly inadequate work performance or other misconduct, where discipline of any
kind is a possible result.

Where the purpose of the interview of meeting is to elicit facts, the employee's
"side of the story," or obtain admissions or other evidence either to determine
whether or not discipline is warranted OR to support a disciplinary decision
already made.

Where the employee is required to explain or defend his/her conduct in a
situation
which the employee reasonably fears could affect his/her working conditions or job
security. [Note-that it is not clear whether this would include non-disciplinary
situations, such as RIF's].

What situations DO NOT give rise to Weingarten fights?

Where the meeting or discussion is merely for the purpose of conveying work
instructions, training, or needed corrections.

Where the purpose of the meeting is simply to inform the employee about a
disciplinary decision that has already been made and no information is sought from
the employee.

Where the employer has clearly and overtly assured the employee prior to the
interview that no discipline or adverse consequences will result from the interview.

Where any discussion that occurs after the employer has notified the employee of
the discipline has been initiated by the employee rather than the employer.

Possibly. We would argue that these rights apply where the employee's performance
has been under scrutiny and the employee reasonably believes that his/her job is
in jeopardy. However, the right is unlikely to apply to classroom observations.

How about "counseling" sessions with supervisors regarding absenteeism or drug
or alcohol problems?

Again, possibly, especially where the employer is seeking information from the
employee or has given the employee a reasonable basis for believing that
discipline or termination might result from the problems under discussion.

What constitutes a "reasonable expectation" that discipline may result?

The test is objective, not subjective. The employee's belief must be a
reasonable assessment of the objective circumstances. For example, has the
employer provided any oral or written warnings? Have there been oral or written
allegations of misconduct? "Has the employee been under scrutiny previously? Have
other employees been disciplined for conduct similar to that being investigated at
this meeting? Note that an employer may be able to avoid Weingarten problems by
clearly informing the employee that no discipline will result from the meeting and
by following through on that promise.

What if the employer states that a disciplinary decision has already been made
but then begins to question the employee about his or her conduct?

The cases are unclear on this situation. We recommend that employees
ask for representation at any point in the meeting when the employer solicits
information from them. We would argue that seeking such information shows that the
employer is trying to support or possibly alter its disciplinary decision, which
gives rise to Weingarten rights.

Does the location of the interview matter?

It is more likely that Weingarten fights are involved when the interview or
discussion takes place in a supervisor's office, but this is not a hard and fast rule

Does the employer have to inform you about your Weingarten rights before
conducting the meeting or interview?

Absolutely not. It is up to employees to know their rights and ask for
representation in investigatory or disciplinary interviews.

How and when should an employee request representation?

As soon as the employee becomes aware that the employer is seeking information
that may result in discipline, or to support a disciplinary decision, the employee
should state his/her desire for representation.

The employee's request does not have to be in any particular form nor does it have
to be in writing. Even words such as, "Shouldn't I have a representative here?"
have been considered sufficient to assert Weingarten rights.

As to when, the employee can make the request at any time, even in the
middle of the meeting. (However, the employer will be permitted to use any
information obtained before the request has been made, as long as the employer
provides Weingarten rights promptly upon the employee's request.)

Does the employee need to repeat the request for representation more than once?

No. It is incumbent upon the employer to provide Weingarten rights even if the
request is made to a lower-level supervisor who is not conducting the meeting and
is not repeated at the outset of the meeting.

What should the employee do if s/he is not sure whether or not a particular
meeting calls for Weingarten rights?

There is no harm in asking for representation even if you're not sure you're
entitled to it. The employer cannot discipline you simply for asking.
Employees could also ask whether or not the meeting could result in disciplinary
action; if the answer is anything but "no," the employee would be reasonable in
asking for representation.

Cautionary Note: An employee may not be protected if s/he refuses to
participate in a meeting that is subsequently found to lack Weingarten status.
Therefore, we recommend that employees consult with their union representatives
any time they are called to a meeting with the employer, for advice about their
rights.

What are the Weingarten rights that the employer must offer, after an employee
has requested representation?

The employer has three lawful options:

Grant the request and delay the interview or meeting until the representative
arrives and has a chance to consult privately with the employee; or

Discontinue the meeting or interview; or

Allow the employee to choose whether to continue with the interview
unrepresented or forego the interdew entirely.

If the employer insists that the meeting continue without a representative, may
the employee refuse to answer questions or even leave the meeting?

Arguably yes. An employer cannot discipline or discharge an employee for
refusing to surrender his Weingarten rights to representation. If it is truly a
Weingarten situation, the employee may remain silent or even leave and return to
his/her normal work duties.
However, given the complexity and unpredictability of the law, it is often more
prudent for the employee to comply with the employer's directives, knowing that
s/he might later be able to overturn any discipline that results from the unlawful
meeting. Otherwise, the employee risks being disciplined for insubordination.

Can the employee insist on a particular representative? Does it have to be a
union representative?

The employee may choose his/her own representative, whether it's a union official
or another employee, without the employer's interference, as long as the choice
does not unduly disrupt the employer's ability to conduct the investigation. In
practice, this usually means that the employer should try to comply with employees
request, even if it means some delay in scheduling the meeting. On the other hand,
the employee can't expect the employer to postpone the meeting unreasonably. The
reasonableness of either the employer's or the employee's behavior can only be
measured on a case by case basis.

Does the employer have to give release time to the representative requested by
the employee?

The general rule is that the employee may choose his/her representative if that
person is "available." If the interview or meeting is scheduled sufficiently in
advance that the representative can meet with the employee on off-duty time, then
they will be required to do so. Of course, your local collective bargaining
agreement may also provide-for release time in these situations.

If the interview or meeting is scheduled so closely that off-duty consultation is
not possible, the employer would have to provide release time to the
representative who is on the premises unless the employer can establish some
overriding management need that would preclude doing so.

What are the representative's role, rights, and duties at a Weingarten meeting?

While Weingarten meetings are not "bargaining sessions," the union representative
has the following rights:

To be informed about the subject matter of the meeting;.

To consult privately with the employee before the meeting;

To speak and be proactive during the interview, as long as doing so does not
interfere with or disrupt the meeting;

To advise and counsel the employee;

To provide additional information to the employer at the end of questioning.

To bear witness to the proceedings, take notes, etc..

If an employer has provided all the necessary Weingarten rights, may an
employee refuse to answer questions?

No, unless the matter under discussion has criminal implications. Generally, an
employee generally does not have the right to remain silent, as long as his/her
representational rights have been honored, nor may the union representative direct
the employee to remain silent.

Can an employee "waive" his/her Weingarten fights? How?

If an employee does not affirmatively ask for representation, s/he will be
considered to have "waived" his/her rights. However, as noted earlier, the request
for representation does not have to comprise any "magic words," as long as it puts
the employer reasonably on notice that the employee would prefer representation.

If the employer claims that the employee chose to continue the interview without
representation the employer must demonstrate that the choice was voluntary, clear,
and unmistakable. For example, if the employee elected to go forward without a
representative only after the employer told him "things will be worse for you if
you insist on having the union present," then the choice would not be deemed
"voluntary."

What remedy is available for violation of Weingarten rights?

An employer commits a prohibited practice under Chapter 150E if it (1) refuses an
employee's request for representation during an investigatory or disciplinary
meeting or otherwise withholds the full panoply of Weingarten rights; (2)
disciplines an employee for asserting his/her Weingarten rights; (3) threatens or
coerces an employee exercising Weingarten rights; or (4) threatens or disciplines
a union representative for assisting an employee in a Weingarten meeting.

The Labor Relations Commission will order the employer to rescind any retaliatory
threats or discipline imposed because an employee or union representative
exercised Weingarten rights. Moreover, if, the Commission finds that the
discipline ultimately imposed by the employer was affected by the information
obtained at the unlawful meeting, or was affected by the fact that no union
representative was present, then the Commission will also order that discipline
rescinded. The Commission will also order the employer to post a notice of the
violation.

Arguably, information obtained at a meeting in violation of Weingarten rights
should be excluded from any eventual discharge or discipline arbitration.